Amendments to Rule 615 – Effective November 1, 2024
Amended Rule 615 of the Utah Rules of Evidence provides clarification on what locations (physical and virtual) a witness can be excluded from when not testifying. The rule adds subsection (b) which contains provisions allowing a court to “prohibit disclosure of trial testimony to excluded witnesses” and to “prohibit excluded witnesses from accessing trial testimony.”
The revisions are a step forward in protecting the integrity of the court system, but should not be interpreted or implemented in ways that impair the role of defense counsel.
Potential Concerns Affecting Defense Counsel Function
The newly added subsection (b) on its face seems like a reasonable means of enforcing the purposes of the exclusionary rule. There has long been a concern among trial attorneys and defense lawyers that a excluded witness could still be fed all of the information that would result in the taint that the exclusion was intended to prevent.
However, there is some concern that this rule could be interpreted broadly by trial courts, in a way that could prevent defense counsel from performing their ethical duties and constitutionally-mandated roles. The 2024 Advisory Committee Note partially addresses this concern, noting that the amendments are not “intend(ed) to limit counsel’s… lawful and ethical ability to prepare witnesses.”
Beyond an “Ethical Ability to Prepare Witnesses”
Under the constitutions of both Utah and the United States, a person charged with a crime has the right to have the effective assistance of counsel. This right covers not only counsel’s conduct in the courtroom and during trial, but also in the preparation of the case, negotiations, sentencing, and all critical phases of the case.
This constitutional right to the effective assistance of counsel imposes on defense attorneys an obligation to appropriately investigate the case.
It is not clear if the advisory committee note is intended to reference counsel’s “ability to ethically prepare witnesses” or instead to counsel’s “ethical duty to adequately prepare witnesses.” Either intended meaning does not go far enough.
A good criminal defense lawyer understands that the constitutional obligation to investigate a case can form the foundation of effective representation in the courtroom. A defense attorney may need to discuss other witnesses’ testimony with defense witnesses that have not yet been called to testify, and with witnesses who may ultimately not be called to testify. These potential witnesses may provide defense counsel with additional information that can put other testimony in its proper context or may provide insight into potential impeachment of such witnesses.
Criminal Defense Investigation is Different
These distinctions are especially important in the context of criminal defense investigation and courtroom advocacy.
Criminal prosecutors will frequently instruct alleged victims and witnesses that they do not have to speak with defense counsel or defense investigators, and that they are not required to answer any questions or even respond to inquiries from the defense. While such instructions may accurate state the law, they can also have the effect of improperly impairing defense counsel’s ability to appropriately and fully investigate the case.
Persuasive Effect of Police Power
A uniformed police officer with a badge and a gun can present as an intimidating figure. “We need you to….” “Do you mind if we….,” “Could we just have you….” “I need you to tell me….” These may not constitute “commands” as a matter of formal grammar and syntax. But when such statements or “requests” are made by a person with a gun and a badge, many people will feel obligated to respond and comply.
Defense investigators simply do not have the same appearance of authority. That apparent lack of authority, combined with instruction from a prosecutor and/or police officer, telling the potential witness that they do not have to talk with the defense investigator, can significantly impair the ability of defense counsel to adequately investigate.
Not “My” Witness – Not “Your” Witness
It may not take long for a good defense attorney to be confronted by a prosecutor who demands to know, “Why are you talking to my witness without me present?”
Simply having a conversation in the courtroom hallway can trigger this kind of response from some prosecutors. Even when the conversation is held in a public space with other people watching and listening to the exchange, some prosecutors can become inappropriately possessive and protective of what they see as “their” witness.
A witness is a witness. Whether called to testify by the defense or by the prosecution, the role of a witness is not to advocate for one side over the other, but to testify truthfully.
Avoid Chilling Effects on Defense Counsel’s Function
While the Advisory Committee Note is surely well-intended, the idea should perhaps be stated more bluntly and forcefully.
Defense counsel needs to be free to talk with witnesses and potential witnesses, without first asking the court for permission and without disclosing the purpose or objective of having such conversations. To require otherwise creates a potential chilling effect on defense counsel or pressure counsel to disclose work product materials or strategy information that would otherwise remain confidential.
Nothing in Rule 615 should be interpreted as limiting an attorney’s freedom and ability to ethically perform any of the necessary duties of defense counsel. A person facing criminal prosecution is entitled to nothing less.